The parties attended a pre-trial conference on 11 May 2008 whereat issues for trial had been formulated. However, at the trial, the parties informed the court there were now only two issues for the determination of the court, namely:
(a) Which one of the parents should be awarded the custody of the two minor children?; and
(b) How should the maintenance of the minor children of the marriage be apportioned between the parties?...,.
Each party then gave viva voce evidence.
The plaintiff's evidence was that he got married to the defendant on 7 April 1996 in Bulawayo. The parties were blessed with two children, namely: (a) Senzosihle Mfanelo Mavume - (girl) born on 22 June 1992 before the parties solemnized their marriage, and, (b) Bhekumuzi Khulile Mavume – (boy) born on 22 July 1999.
The plaintiff dealt with the issue of the custody of the children under four heads, viz:
1. Abandonment of children;
2. Denying children basic rights;
3. Parenthood/motherhood experience; and
4. Children's future.
(1) Abandonment of children
Under this head, the plaintiff alleged that all started going wrong in May 2002 when Bhekumuzi, the boy, was only 2 years 9 months, and the girl, Senzosihle, was 9 years 9 months. Their mother, the defendant, decided to leave Zimbabwe to go and work in Botswana. Without consulting the plaintiff about the plight of the children, she left them under the care of her sister, one Sihle, who was allegedly a heavy drinker of alcohol.
At that time, the boy had no place for pre-school and the sister had no place for secondary school. The defendant had made no arrangements for that. The plaintiff had to take care of those situations by looking for places for the children. He secured places for the boy at Queen Elizabeth Pre-school and Dominican Convent for the girl respectively. The plaintiff did all that without the participation or input from the defendant. Both parties were out of the country. The plaintiff was in South Africa while the defendant was in Botswana.
The children had been left with Sihle at the house of the defendant in Matshemhlophe. However, in January 2005, the defendant removed them from her house and allegedly dumped them at the plaintiff's house in Khumalo. She did that without consulting the plaintiff. He was only informed by his brother's daughter about what had happened.
The boy was due to start school by 2005. The defendant did not do anything about getting him a place to start primary education. That, again, was done by the plaintiff who finally secured him a place at Masiyephambili School.
In October 2008, the defendant allegedly took the girl away from the plaintiff's house in Khumalo to her house in Matshemhlophe. She however left the boy behind. That, again, according to the plaintiff, the defendant did without consulting him.
After removing the girl from the plaintiff's house, the defendant e-mailed the plaintiff explaining that the girl had moved to Matshemhlophe because she had gone hungry at the plaintiff's house in Khumalo in August. She alleged that there was no bread and meat. The plaintiff found that hard to believe as he always ensured that there was enough food at his house. What made the defendant's story more difficult to believe was that the alleged shortage of food at the house occurred during the month of August but the defendant only brought it to the attention of the plaintiff in October when the girl had already relocated.
The plaintiff had to conduct an investigation into the matter and established the girl had obtained a driver's licence and had moved to Matshemhlophe to drive her mother's car. He established that the true reason why the girl relocated was to go and drive her mother's car. That was the agreement the girl had since reached with her mother. The plaintiff emphasized that that agreement excluded the boy who was left alone at his Khumalo house.
He said since education in Zimbabwe had become uncertain due to the strike by teachers, he decided to take the boy to join him in South Africa so that he could attend school there; but, because the parents were not on talking terms, he asked the boy to inform his mother about the intended move. In January, the defendant took the boy to South Africa and left him with the father. He has been there ever since attending school there.
(2) Denying children basic rights
This allegation was premised on the following facts;
The defendant only participated in securing pre-school and primary school places for the girl. Thereafter, she did nothing more. She made no effort to secure the girl a secondary school place. She made no effort to ensure that the boy got a place at a pre-school or primary school.
Secondly, when the plaintiff was processing application forms for the children's passports he sent the forms to the defendant for her signature, as a parent; she refused to sign them and returned them unsigned.
The defendant did not end there, but she also refused to sign application forms for the children's South African resident permits. The plaintiff had to use other means and succeeded in obtaining South African resident permits for the children.
The defendant's explanation for refusing to comply was that she did not quite understand what all that meant.
She, briefly, was attributing that to ignorance. That excuse is lame and clearly unacceptable.
(3) Parenthood/motherhood
The plaintiff averred that the defendant had not lived with the boy since he was 2 years 9 months; she, therefore, did not have sufficient experience for his upbringing on a day to day basis. It was his evidence that the defendant had not demonstrated foresight in as far as the children's future was concerned. He held the view that the defendant did not care about the children and did not display any sensitivity in relation to their plight. For instance, the plaintiff stated, under cross-examination, that any caring mother would not leave behind a 2 year 9 months toddler to go and work in Botswana.
(4) Children's future
The plaintiff's evidence under this head was that the girl would be turning 17 on 22 June. She therefore needed an identity card in order to attend any tertiary institution outside this country. He claimed that the defendant did not seem to be doing anything about that.
As regards the boy, the plaintiff's evidence was that he was now in his third school i.e. from St Thomas Aquinas, to Masiyiphambili in Zimbabwe, and now at Birchacre in South Africa. If he were to be moved to Botswana, where the mother is on contract, he would have to go to a fourth school before writing Grade 7. The mother's contract can be terminated at any time and she would have to look for another job elsewhere. The boy would also be moved to the new town or city where the mother gets a new job.
The plaintiff was cross-examined by the defendant, and, when asked why he alleged that she had abandoned the children he replied that he was saying so because she had left the children without securing places for school and that any caring mother would not leave behind a 2 year 9 months child to go and work in the diaspora. It was put to him that the pre-school where he had got a place for the boy was of sub-standard in terms of hygiene and the boy ended up suffering from ring-worms. His reply was that he had not been made aware of that. All he knew was that she had left the children without making any arrangements for their schooling. He had to come from South Africa to find the child a place for school. He said the situation was desperate which needed an urgent solution.
The defendant tried to justify why she left the child behind by saying that she had joined a pharmacy where she had to go from place to place in Botswana, but, the plaintiff said that was no justification for leaving a toddler with her sister who was an alcoholic. He also told her, under cross examination, that the explanation that she returned the forms unsigned due to ignorance was unacceptable because she used to be represented by some lawyers. She should have therefore sought legal advice.
The plaintiff gave his evidence in a clear and straight forward fashion. He is worth to be believed.
The same cannot be said about the defendant when she gave viva voce evidence although she also had no witness to call.
Her evidence was that during the year 2002 she decided to go and work in Botswana in order to fend for her children. She asked her sister to stay with her children at her Matshemhlophe house during her absence. At that time, she thought the arrangement was just temporary as she intended to come back home after receiving her share from the proceeds of the sale of Bulawayo Centre Pharmacy. To her disappointment she never got her share when the pharmacy was sold. She alleged that that was the reason why she was still working in Botswana up to this day.
Her first job was with a Group which had pharmacies all over Botswana. So she was moved from place to place in Botswana. It was then practically impossible to take her son to Botswana.
However, in August 2004, she changed jobs and joined the Botswana Government. During that same year, her sister went to South Africa in December. It also turned out that the maid went on maternity leave at that same time. A new maid had to start in January, but, the children were not comfortable with a new maid at the defendant's house. They allegedly told the defendant that they would be comfortable if she moved them to the plaintiff's house in Khumalo to stay with their cousin there.
The defendant alleged that she attempted to explain her predicament to the plaintiff but he would not hear from her whereupon she explained to his niece and requested her to pass that information to him. To make assurance double sure she asked her daughter to do the same.
She told the court that the rules at her new job did not allow her to take leave before she completed a year. She nevertheless managed to come to Zimbabwe fortnightly to check on the children. After completing a year she was entitled to a month's leave.
When she wanted to make arrangements to return the children to her house in Matshemhlophe they told her that they were happy at their father's house in Khumalo. The need to move them did not arise.
She then sent the plaintiff an sms message telling him to find a place for the boy at St Thomas Aquinas in Khumalo. The boy transferred from Masiyephambili to St Thomas Aquinas in 2007. The defendant had hired a driver to deliver the children at their respective schools as well as collecting them therefrom.
She went on to allege that during the children's stay at their father's house in Khumalo they were not allowed to visit her in Botswana during school holidays. However, at one stage the girl managed to go and visit her without the father's approval. It was during that visit that the girl allegedly revealed to her that the father was no longer giving her pocket money which the mother started to give her. It was at that stage that she stopped going to visit her father in South Africa. The reason for that was that she played tennis at national level being sponsored by the mother who supplements the money for sponsorship with the proceeds from the Mpopoma house rentals.
The defendant received a report from the girl, during 2007, to the effect that her father was no longer phoning her - even to just say hello. He used to phone her at least three times a day during the construction of the Khumalo house but had allegedly stopped when construction was over. The defendant herself continued to phone the children at least three times a week.
The situation deteriorated in May 2008 when the niece of the plaintiff left for South Africa. Another niece went to stay with the children. They did not get on well with her. Suddenly, there was a shortage of food at their father's house. The father was allegedly no longer sending any food for the children. The girl had to go to the mother's house in Matshemhlophe to collect food. In the circumstances, the girl made up her mind to move from Khumalo to Matshemhlophe. When she told her mother about what she wanted to do she was advised not to do so. She allegedly told the girl that she could not leave behind her little brother.
When she turned 16 years last year the mother enrolled her at a driving school. She requested to have the car parked at the Khumalo house but the father is alleged to have said the car should never enter his yard.
That seems to have worsened the situation because the girl allegedly persisted with her wish to move to Matshemhlophe. She began to allege that her father no longer loved her and that the mother did not also want her at her Matshemhlophe house. When asked if she had told her father about the move she said she had and he had told her to leave the mobile phone that he had given her to use. It was for these reasons that the girl returned to her mother's house.
The boy remained at his father's house in Khumalo. When the defendant emailed the plaintiff suggesting that she would like to take the boy with her to Botswana she got no response.
At the beginning of this year she took the boy to South Africa to visit his father. According to her, the boy was initially happy to learn in South Africa but changed his mind when he learnt that the parents were divorcing. She alleged that he now preferred to be with her than with his father.
In conclusion, she said it would be in the best interest of the children if they remained with her after the divorce.
Her conclusion is baseless because she literally dumped them when they were of very tender ages - particularly the boy who was at the age of learning how to speak sensible things. Any caring mother would not leave behind such a child. Caring mothers are always seen with their little ones strapped at their backs in times of hardships. They cross borders with them; yet, the defendant, who was going into a very good job as a pharmacist, left behind her child. Now that he can do things for himself she wants to take him away.
She is working as a contract worker with the Botswana Government. She refused to answer the plaintiff's question when he asked her to tell the court when her contract was due for renewal. Even when told by the court to answer the question she would only say her contract was due for renewal sometime next year. It is common practice the world over that a contract may be renewed or may not.
The boy has now got a place at Birchacre School in South Africa. It would not be in his best interest to pluck him off from there to either go to Petra School in Zimbabwe or go to some yet unknown school in Botswana.
The defendant was an unreliable witness.
She wanted the court to believe that she did not get her share from the proceeds of the sale of the Bulawayo Centre Pharmacy. It only came out, under cross-examination, that she in fact got a car, a table and some chairs. So it was not true to say she was still in Botswana because she had not received her share.
The defendant was also evasive and did not want to answer questions.
For instance, when asked why she had left the children without planning what was going to happen to them next her reply was that the plaintiff and herself never used to talk to each other. When asked why she did not tell her lawyer that the children had no food at the Khumalo house her answer was that the lawyer, who had over 20 years experience, was expensive. When pressed further why she did not even tell her lawyer that the children were unhappy at the Khumalo house and about the father not loving his daughter she was unable to explain and maintained that her lawyer was expensive.
She clearly had no acceptable explanation. She and her lawyer were in the habit of producing very long documents. Her plea and claim in reconvention were long. Her synopsis of evidence was twelve (12) pages; yet, in all those long documents she does not mention these material points.
This court has no hesitation in making a specific finding that the allegations of the children not having food at the Khumalo house, and not being happy there, are after-thoughts which are false and are accordingly rejected.
The defendant told the court, under cross examination, that the girl was likely to go to study in the United States of America but produced no evidence showing that a place for study has indeed been secured.
The girl turns 17 years on 22 instant and will attain age of majority next year. She has already made her decision to stay with her mother. It would not be fair to force her to go and live with her father in South Africa. She should be left with the mother to enjoy driving her mother's car to and from school.
As for the boy, who will be turning 10 years on 22 July 2009, it is in his best interest to continue living with his father. He is already attending school at Birchacre in South Africa. The education in our country collapsed last year when teachers went on strike. Examination papers are taking nearly a year to mark. It would not be in the best interest of the child to purport to put him in such an education system. Neither would it be in his best interest to pluck him from where he has been learning since January in order to go to some school in Botswana. In the result, the court shall allow him to remain with his father in South Africa.
In the light of the foregoing I would issue the following order:-
It is ordered that:-
(1)...,.
(2) The custody of the girl, namely, Senzosihle Mfanelo Mavume, born on 22 June 1992, be and is hereby awarded to the defendant with the plaintiff being given reasonable rights of access to her;
(3) The custody of the boy, namely, Bhekumuzi Khulile Mavume, be and is hereby awarded to the plaintiff with the defendant being given reasonable rights of access to him;
(4) Each parent shall be responsible for the full maintenance of the child in his or her custody, meeting in full the expenses incurred in educating the child, including the timeous settlement of all invoices produced by the school in respect of tuition fees, levies, and any other charges, and by meeting the costs of school uniforms or other equipment required by the child during the course of his or her education;
(i) By meeting, in full, the costs of the child's extra mural activities;
(ii) By meeting, in full, the costs of any medical, dental, surgical or ophthalmic treatment of the child including the costs of medicines and drugs administered in the course of such treatment;
(5)...,.
(6)...,.
(7)...,.
(8) Each party shall bear its own costs.
